Bell v. Martin

I concur with Mr. Justice THOMAS in holding that the defendant was due the affirmative charge as to the issues presented by count 8 of the complaint, but am of opinion that the evidence presented a jury question as to whether or not Holbrook, the driver of the truck, was acting within the line and scope of his employment at the time of the collision with plaintiff's automobile.

The evidence is without dispute that the defendants' truck was used by them as common carriers of freight; that the driver was the regularly employed driver of said truck and on regular duty; that said truck at the time was loaded with a thousand pounds of freight; that the route of the truck, as indicated by the permit, of necessity and convenience, was from Selma, Alabama, via Uniontown and to Greensboro and return. Nevertheless there was evidence showing that up to the time of the collision in question the defendants as carriers had been delivering freight to merchants in Sawyerville traveling the highway on which the truck was moving at the time of the collision. The evidence is also without dispute that Holbrook had carried the truck past Greensboro on the Akron and Sawyerville road to his father's home where he went to get eggs and buttermilk for his own use, a distance of two and one-half miles; or ten minutes' driving; that he had gotten the eggs and milk and was on his return to Selma, when the collision occurred in the "edge of Greensboro" near the old Hobson home.

Holbrook, the driver, testified: "I left my father's house and was going to Greensboro, pick up my helper and then going on to Selma. The accident occurred on the edge of Greensboro. I left Greensboro about six and stopped at my brother's filling station a few minutes, where I left my helper and I was to pick him up after I returned from my father's house and then go on to Selma. I had some freight on my truck for Mr. Huggins in Uniontown and I was going to carry it with me because I couldn't deliver it, for his store was closed. I was going to take that freight back to Mr. Bell so that it could be delivered the next day."

There was also evidence going to show that at the time of the collision the truck was moving at the rate of from thirty-five to sixty miles per hour at night, holding the inside of the curve on the left of the highway. Plaintiff's automobile was smashed and he was seriously and permanently injured.

In Blackmon v. Starling, 222 Ala. 87, 130 So. 782, it was observed by Mr. Justice Thomas: "Our decisions are further agreed that, where there has been a deviation or departure from the master's business, and the scope of the agent's employment, where such personal purpose and benefit has been accomplished, and the agent is in the process of returning to the sphere of his employer's business, the question as to whether he is acting within the line and scope of his employment and his master's business is for the jury under appropriate instructions from the court." Citing Edwards v. Earnest,206 Ala. 1, 89 So. 729, 22 A.L.R. 1387; Id., 208 Ala. 539,94 So. 598; Rooks v. Swift Co., 210 Ala. 364, 98 So. 16; St. Louis-San Francisco Ry. Co. v. Robbins, 219 Ala. 627,123 So. 12; Anderson v. Southern Cotton Oil Co., 73 Fla. 432,74 So. 975, L.R.A.1917E, 715; 22 A.L.R. 1410, Note.

This doctrine and its application was approved in Mobile Pure Milk Co. v. Coleman, 230 Ala. 432, 161 So. 829; and authorities cited as supporting it show that it is in line with the great weight of authority.

GARDNER, C. J., concurs in the foregoing.